Holcomb v. Lykens

• Decision Date: 23 July 2003
• Docket Number: Docket No. 02-7838.
• Citation: 337 F.3d 217
• Parties: Kevin HOLCOMB, Plaintiff-Appellant, v. Mark LYKENS, Sean Smith, Joanne Pereria and John Gorczyk, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

337 F.3d 217

Kevin HOLCOMB, Plaintiff-Appellant, v. Mark LYKENS, Sean Smith, Joanne Pereria and John Gorczyk, Defendants-Appellees.

Docket No. 02-7838.

United States Court of Appeals, Second Circuit.

Submitted: March 4, 2003.

Decided: July 23, 2003.

David John Mullet, Montpelier, VT, submitted a brief for Appellant.

William H. Sorrell, Vermont Attorney General, David R. Groff, Assistant Attorney General, Waterbury, VT, submitted a brief for Appellees.

Before: CALABRESI, SACK, and CUDAHY,^* Circuit Judges.

SACK, Circuit Judge.

The plaintiff Kevin Holcomb brought suit under 42 U.S.C. § 1983 alleging that his procedural due process rights under the Fourteenth Amendment to the United States Constitution were violated when the defendants revoked his extended furlough¹ from prison without following the Vermont Department of Corrections' written procedures. The district court granted the defendants' motion for summary judgment, concluding that qualified immunity protects the defendants from Holcomb's claim. We affirm the judgment of the district court, but on other grounds.

BACKGROUND

The facts underlying the judgment on appeal are not in dispute. At all relevant times, Plaintiff-Appellant Kevin Holcomb was in the custody of the Vermont Department of Corrections ("DOC") serving a lawful term of imprisonment. On March 24, 2000, Holcomb was released on furlough pursuant to 28 V.S.A. § 808 under the supervision of Defendant-Appellee Correctional Services Specialist Mark Lykens. On April 17, 2000, Holcomb notified Lykens that he, Holcomb, would start a temporary work assignment at the Moretown, Vermont, landfill on April 18, 2000. Because Holcomb could not arrange for a ride home from work on that day, he contacted his employer early that morning to arrange to begin the job a day later. Instead of beginning his temporary work assignment that day, Holcomb spent the morning looking for permanent work. In that pursuit, he visited the DOC Probation and Parole Office at 10:30 a.m. to obtain information about job openings, scheduled and attended a job interview at 11:00 a.m., and visited several employers to apply for work. As a result of his efforts, he was offered and accepted permanent employment scheduled to begin three weeks later. But Holcomb failed to inform Lykens of any of this.

During the course of the day, Holcomb's fiancée, Dawn Boothe, transported him from place to place by automobile; she had been approved by DOC to provide transportation for him during his furlough. While driving Holcomb around, Boothe suffered an asthma attack requiring her to return to her apartment to retrieve her inhaler. Although Holcomb did not have permission to be in Boothe's apartment, he nonetheless went with her to help her locate the inhaler and to use the lavatory. Boothe's landlord saw Holcomb enter the apartment and notified Lykens.

Lykens thereupon contacted Holcomb and ordered him to Lykens's office. Holcomb went there as told, and was promptly placed in hand-irons and removed for incarceration pending his furlough-revocation hearing. At that hearing presided over by Defendant-Appellee Hearing Officer Sean Smith, Holcomb admitted to being "out of place" on the 18th. Smith revoked Holcomb's furlough. When Holcomb objected that such revocation was contrary to the procedures set forth in the DOC Graduated Sanctions Manual (July 1996) (the "Manual"), Smith said that he was not required to follow those procedures.

The following month, Holcomb, incarcerated, wrote a letter to Defendant-Appellee JoAnne Pereria, Superintendent of the Department of Corrections, asking that she reconsider his furlough revocation, and later, a letter to Defendant-Appellee DOC Commissioner John Gorzyk, asking that he overturn the furlough revocation. Pereria denied the request directed to her; Gorzyk ignored the letter directed to him. Holcomb also filed several grievances with DOC, all of which were denied. On September 6, 2000, Holcomb's appeal of the denials was denied by Commissioner Gorzyk.

Holcomb then filed a petition for a writ of habeas corpus in Vermont Superior Court, Orleans County. The writ was granted. The court (Howard E. VanBenthuysen, Superior Judge) concluded, and it is undisputed before us, that the Manual applied in Holcomb's case.² Hearing Officer Smith had wrongly failed to follow it and had punished Holcomb excessively in violation of its provisions. Holcomb v. Gorczyk, No. 130-5-00, slip op. at 2-3 (Vt.Super.Ct. Oct. 5, 2000). According to the Manual, violating furlough by being "out of place," as Holcomb had been, is a "Level III" violation, which is the least serious of violations categorized in the Manual. Level III violations may not be punished by re-incarceration. Manual at 4. But because Holcomb's furlough had been revoked on at least two previous occasions, he may have been subject to sanction for a "Level II" violation under the Manual, id. at 5, the maximum penalty for which is thirty days' incarceration. In any event, as a result of the court's decision, Holcomb was returned to extended furlough on October 6, 2000, after 165 days of re-incarceration following his April 25, 2000, revocation hearing.

On July 11, 2001, Holcomb filed suit under 42 U.S.C. § 1983 for violation of his civil rights in the United States District Court for the District of Vermont against Lykens, Smith, Pereria, and Gorcyzk. Holcomb seeks damages for his re-incarceration,³ attorney's fees, and costs. He contends that the defendants' violation of the DOC regulations contained in the Manual deprived him of liberty without due process of law under the Fourteenth Amendment to the United States Constitution. The district court (Jerome J. Niedermeier Magistrate Judge⁴) concluded that qualified immunity protects the defendants from suit because a liberty interest in remaining on extended furlough under DOC procedures, if it exists, was not clearly established at the time of Holcomb's revocation hearing. Holcomb v. Lykens, No. 2:01-CV-225, slip op. at 10, 20 (D.Vt. June 21, 2002).

Holcomb appeals.

DISCUSSION

I. Standard of Review

We review the district court's grant of summary judgment de novo. See Steel Partners II, L.P. v. Bell Indus., Inc., 315 F.3d 120, 123 (2d Cir.2002). "Summary judgment is appropriate only where, examining the evidence in the light most favorable to the nonmoving party, the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (citations, internal quotation marks, and alterations omitted); see also Fed.R.Civ.P. 56(c). These standards apply where, as here, the facts are not in dispute. Cf. Steel Partners II, 315 F.3d at 122-23.

II. Qualified Immunity

The district court granted summary judgment to the defendants on the ground that qualified immunity protects them from suit. We ultimately agree with the court's disposition of the summary judgment motion, but on different grounds.

"In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.1996). Consideration of the defense of qualified immunity involves a two-step process. Ordinarily, "we [first] address the threshold question of whether the amended complaint alleges the deprivation of an actual constitutional right. If it does, we then decide whether the right was clearly established at the time of the officers' alleged misdeeds." Patel v. Searles, 305 F.3d 130, 135 (2d Cir.2002) (citing Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)), cert. denied, ___ U.S. ___, 123 S.Ct. 1486, 155 L.Ed.2d 227 (2003); see also Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? ... [T]he next, sequential step is to ask whether the right was clearly established."). In order to defeat the defendants' qualified immunity defense, then, Holcomb must allege a deprivation of an actual constitutional right clearly established at the time of the events in issue.

Holcomb asserts that he was deprived of his Fourteenth Amendment procedural due process rights when Vermont state corrections officers revoked his extended furlough without following the procedures set forth in the Manual. "The Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law." Meachum v. Fano, 427 U.S. 215, 223, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).

A. Morrissey and the Protected Liberty Interest in Parole

Although the Supreme Court has not considered whether there exists a liberty interest in extended furlough from prison of the sort enjoyed by Holcomb in the days preceding April 18, 2000, the Fourteenth Amendment's Due Process Clause creates a liberty interest in parole, such that parole revocation must be accompanied by sufficient process, Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court identified several aspects of parole that made "the interest of the parolee in his continued liberty," id. at 481-82, 92 S.Ct. 2593, similar to other citizens' interest in their continued liberty and therefore worthy of due process protection:

The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime.... Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not...