Sisbarro v. Warden, Massachusetts State Penitentiary

• Decision Date: 08 February 1979
• Docket Number: No. 78-1381,78-1381
• Parties: Anthony F. SISBARRO, Plaintiff, Appellant, v. WARDEN, MASSACHUSETTS STATE PENITENTIARY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

592 F.2d 1

Anthony F. SISBARRO, Plaintiff, Appellant, v. WARDEN, MASSACHUSETTS STATE PENITENTIARY, Defendant, Appellee.

No. 78-1381.

United States Court of Appeals, First Circuit.

Argued Jan. 2, 1979.

Decided Feb. 8, 1979.

Paul P. Perocchi, Boston, Mass., by appointment of the court, with whom Crane & Inker, Boston, Mass., was on brief, for plaintiff, appellant.

Lee Carl Bromberg, Sp. Asst. Atty. Gen., Dept. of Correction, Boston, Mass., for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Appellant, a Massachusetts state prisoner, was incarcerated originally in Massachusetts State Prison at Walpole. In May of 1974, he was transferred to the Connecticut State Prison at Summers, and then in January of 1975, to the United States Penitentiary in Lewisburg, Pennsylvania. A year later, he was moved once again, this time to the United States Penitentiary in Leavenworth, Kansas, where he currently is imprisoned as a contract prisoner from Walpole.

Appellant filed a pro se complaint in the district court alleging that these transfers were punitive, that they were effectuated without first providing him notice and a hearing, and that he has not been informed of the standards according to which he may be returned to Walpole. These procedures, he claimed, were violative of his due process rights as well as his rights under the First, Fifth, Sixth and Eighth Amendments. He requested both injunctive and monetary relief pursuant to 42 U.S.C. §§ 1983, 1985. The defendant moved to dismiss the complaint under Rule 12(b)(6). The district court held, after argument, that the complaint failed to assert a valid constitutional claim and granted the motion to dismiss. We affirm.

The due process claim

At the outset, we note the accuracy of appellant's propositions that a pro se complaint is held to "less stringent standards than pleadings drafted by lawyers" and that a Rule 12(b)(6) motion to dismiss is not the proper remedy for inartful pleading. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). But even construing the complaint in the light most favorable to appellant, we cannot find that it states a legal claim upon which relief can be granted.

Appellant relies on Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973), Vacated and remanded, 418 U.S. 909, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), Modified on reconsideration, 510 F.2d 537 (1st Cir. 1974), in which this court held that transfers of prisoners to out-of-state and federal prisons had been carried out in violation of their procedural due process rights. We framed the analysis as follows: "(i)nvocation of (procedural) rights depends upon whether treatment inherent in the transfer process constitutes 'grievous loss' ". 490 F.2d at 1212. His reliance is misplaced, however for in Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), the Supreme Court expressly rejected the "grievous loss" approach to questions of procedural due process in prison transfers and held "that no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing, Absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events." Montanye v. Haymes, supra, 427 U.S. at 242, 96 S.Ct. at 2547 (emphasis added).

Although the Court in these cases concerned itself with intrastate transfers, we can see no reasoned basis on which to revert to the Gomes analysis, as appellant urges, when the prisoner has been transferred interstate to another state or federal institution, even though Gomes involved such a transfer. It may often be true that a prisoner will be moved a longer distance when he is transferred interstate rather than intrastate, resulting in substantial interference with communication and visitation, and that his access to legal materials and lawyers of the state in which he was convicted may be diminished. Greater disadvantages thus may accompany an interstate transfer. But the Court has held that an increase in burdensome conditions does not in itself implicate the due process clause; "the determining factor is the nature of the interest involved rather than its weight." Meachum v. Fano, supra, 427 U.S. at 224-25, 96 S.Ct. at 2538. The district court properly concluded, therefore, that "(i)f the burden of disadvantage to the prisoner is no longer the test, (there is) no distinction between interstate and intrastate transfers". Accordingly, we employ the reasoning of Meachum v. Fano and Montanye v. Haymes, supra, and turn to the law of Massachusetts, the state in which appellant was initially incarcerated and whose prison officials have transferred him from institution to institution, to determine whether there exists "some right or justifiable expectation" embodied therein that the prisoner "will not be transferred except for misbehavior or upon the occurrence of other specific events". Montanye v. Haymes, supra, 427 U.S. at 242, 96 S.Ct. at 2547.

Appellant was transferred from Massachusetts State Prison to Connecticut State Prison pursuant to the New England Interstate Corrections Compact, M.G.L. c. 125, App. §§ 1-1 1-3. Article I of the Compact reads as follows:

"The party states, desiring by common action to fully utilize and improve their institutional facilities and to provide adequate programs for the confinement, treatment and rehabilitation of various types of offenders, declare that it is the policy of each of the party states to provide such facilities and programs on a basis of cooperation with one another, thereby serving the best interests of such offenders and of society and effecting economies in capital expenditures and operational costs. The purpose of this compact is to provide for the mutual development and execution of such programs of co-operation for the confinement, treatment and rehabilitation of offenders with the most economical use of human and material resources."

Appellant's contention that this provision establishes a right of hearing before transfer, which would show that the move was for "confinement, treatment and rehabilitation" rather than punishment, is semantically ingenious but unpersuasive. Were appellant's reading correct, the Interstate Compact would be inapplicable to all prisoners who sought to be transferred for their own or others' safety, for disciplinary reasons, for reasons of...