Domegan v. Fair, 88-1142

• Decision Date: 26 July 1988
• Docket Number: No. 88-1142,88-1142
• Citation: 859 F.2d 1059
• Parties: Dennis J. DOMEGAN, Plaintiff, Appellee, v. Michael V. FAIR, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1059

859 F.2d 1059

105 A.L.R.Fed. 741

Dennis J. DOMEGAN, Plaintiff, Appellee, v. Michael V. FAIR, et al., Defendants, Appellants.

No. 88-1142.

United States Court of Appeals, First Circuit.

Heard July 26, 1988.

Decided Oct. 20, 1988.

Stephen G. Dietrick, Deputy Gen. Counsel, Dept. of Correction, with whom Nancy Ankers White, Sp. Asst. Atty. Gen., and Lena M. Wong, Counsel, Dept. of Correction, were on brief, for defendants, appellants.

Paul E. Nemser with whom Paula M. Bagger, Helene Kazanjian and Goodwin, Procter & Hoar, were on brief, for plaintiff, appellee.

Before BOWNES, NOONAN, ^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Because this is an interlocutory appeal which involves us but peripherally in the merits of the case, we offer an abbreviated account of the proceedings and a decurtate explanation concerning the lone matter which lies within our present ken.

I

Plaintiff-appellee Dennis J. Domegan, a state prisoner, sued various administrators and correctional officials at the Massachusetts Correctional Institute--Walpole (MCI-Walpole), claiming that they had run afoul of 42 U.S.C. Sec. 1983 and the Massachusetts Civil Rights Act, Mass.Gen.Laws ch. 12, Secs. 11H & 11I (West 1986), in several ways: (1) inflicting cruel and unusual punishment upon him in violation of the Eighth and Fourteenth Amendments to the United States Constitution and the Massachusetts Declaration of Rights, (2) depriving him of liberty without due process of law contrary to the Fourteenth Amendment, and (3) interfering with rights secured by state law. Defendants (appellants before us) sought partial summary judgment on the basis that they were qualifiedly immune from the prayers for money damages. See generally Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court denied their motion and simultaneously granted plaintiff partial summary judgment in connection with his due process claims. After reconsideration was denied, this appeal followed.

II

Defendants want to bite off far more than we can allow them to chew. They profess to seek immediate review of (1) the grant of partial summary judgment in plaintiff's favor, (2) the denial of their cross motion for brevis disposition on qualified immunity grounds, and (3) the rebuff of their effort to obtain reconsideration and clarification. Yet all three of these rulings are interlocutory; none are "final decisions" within the meaning of 28 U.S.C. Sec. 1291. Because finality is lacking, they are not immediately appealable "unless appellate jurisdiction attaches in some other fashion." In re Recticel Foam Corp., 859 F.2d 1000, 1003-1004 (1st Cir.1988).

The middle item in this list of three--the order refusing partial summary judgment on the ground of qualified immunity--is properly before us under the collateral-order exception to the finality rule. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir.1987). But the jurisdiction so conferred is severely restricted. Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d 125, 127 (1st Cir.1987); Bonitz v. Fair, 804 F.2d 164, 166-67, 173-76 (1st Cir.1986). The pendency of a Mitchell appeal gives us no purchase to entertain appellants' remaining assignments of error. Notwithstanding that we have jurisdiction to review the denial of qualified immunity midstream, "[a]ny additional claim presented to and rejected by the district court must independently satisfy the collateral-order exception to the final-judgment rule in order for us to address it on an interlocutory appeal." Bonitz, 804 F.2d at 173.

It is too plain to warrant citation of authority that the district court's grant of partial summary judgment in Domegan's favor--a grant which left unresolved his Eighth Amendment and state-law claims, and which, as to due process, adjudicated only liability and not damages--is not a final order; it cannot be said to "resolv[e] the contested matter, leaving nothing to be done except execution of the judgment." United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988). And that order fails at least three of the four requisites for invocation of the collateral-order exception: it lacks separability, finality, and urgency. ¹ The order declining reconsideration is even more clearly outside the scope of interlocutory review. Thus, although we consider the refusal of appellants' Mitchell motion, we take no view of any unrelated rulings of the district court. Rather, we focus at this intermediate stage of the litigation exclusively upon (1) the question of whether appellants were erroneously deprived of the benefits of Harlow immunity, see infra Part III, and (2) certain procedural niceties related to the lower court's decision on qualified immunity, see infra Part IV.

III

On the main issue, we conclude that the record amply supports the district court's rejection of appellants' Rule 56 motion. To explicate our thinking, we look first at the facts as pleaded, and then at the applicable law. In the course of this exposition, we undertake neither to resolve conflicts in the record nor to effectuate credibility determinations. We instead "accept[ ] at face value the facts as presented by [the nonmovant]," Bonitz, 804 F.2d at 167, to determine whether they "support a claim of violation of clearly established law." Mitchell, 472 U.S. at 528 n. 9, 105 S.Ct. at 2816 n. 9. ²

A. Factual Mosaic. Plaintiff's relevant factual averments, repeated under oath, are as follows. During the spring of 1983 Domegan was housed in the departmental segregation unit at MCI-Walpole. The prison then had a policy, known as the Alternate Feeding Program (AFP), which placed inmates who had thrown food or human waste on a specially administered diet for several successive days. ³ While subject to AFP, the affected inmate's solid steel cell door was shut. During the currency of an AFP impost, the door was opened only when necessary for administrative purposes. This was contrary to the usual practice which prevailed in the segregation unit. The AFP utilized a steady, unvarying diet of bread and cheese, supplemented solely with the tap water available in the cells. To receive these rations, an inmate was required to turn on the cell's light and lie face down on his cot. Prison officials styled the AFP as an "administrative remedy;" under that rubric, inmates were afforded neither notice nor any predeprivation procedure by which they could challenge the imposition of the regimen.

Domegan was twice placed on AFP after prison officials unilaterally determined that he had thrown food or waste. During the May confinement (which lasted 7 1/2 days), Domegan received only four meals. That July, during 5 days under the AFP regimen, he received none. The reason for this enforced asceticism, appellee claims, was that defendants shut off the supply of water and electricity to his cell while he was subject to the AFP. Because he could not switch on the light in order to comply with requirements for receiving even the Spartan fare which the AFP permitted, he went hungry. Appellant further alleges that, even had he received his stipulated allotment of bread and cheese, his diet would still have been nutritionally inadequate.

B. Discussion. In this posture of the case, the denial of partial summary judgment evidences the district court's conclusion that, "if the facts are as asserted by the plaintiff, the defendant[s] [are] not immune." Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816. Here, such a conclusion cannot be faulted.

Qualified immunity is an affirmative defense which, if successfully pleaded and maintained, discharges officials from the need to stand trial on damage claims. The defense is unavailable when an official has violated a "clearly established" right. Harlow, 457 U.S. at 819, 102 S.Ct. at 2738. In this context, the phrase "clearly established" has a precise definition: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 107 S.Ct. at 3039. Put another way, "in the light of preexisting law the unlawfulness must be apparent." Id. Although the standard may be regarded as "purely legal," it--like so many other "legal" concepts--is informed by the factual parameters of a given case.

Prison officials must act "within the normal limits or range of custody which the conviction has authorized the State to impose." Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). The punishment meted out by the sentencing courts provides the minimum treatment and maximum punishment to be accorded the inmate, within the encincture set by the state's allowable rules. In other words, the discretionary acts of prison officials are bounded by the terms of the sentence. Thus, prison officials are free to transfer inmates from one facility to another within the correctional system, provided state rules allow it and the inmate could have been sent to any of the facilities upon commencing his sentence. See, e.g., Meachum, 427 U.S. at 224-27, 96 S.Ct. at 2538-40. Prison officials may not, however, punish an inmate beyond the terms of confinement set by the court and the state's rules for prisons. Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). When prison administrators undertake to do something to an inmate on a temporary, but non-emergency, basis that they might not do to an inmate regularly or permanently, due process concerns are implicated.

The Commonwealth concedes that the AFP could not have been permanently or regularly imposed upon a prisoner. Domegan has alleged facts sufficient to give credence to his plaint that the programmed diet failed to meet minimum requirements for daily nutritional...