Dominique v. Weld

• Decision Date: 15 September 1995
• Docket Number: No. 95-1465,95-1465
• Citation: 73 F.3d 1156
• Parties: James DOMINIQUE, Plaintiff, Appellant, v. William WELD, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1156

73 F.3d 1156

James DOMINIQUE, Plaintiff, Appellant, v. William WELD, et al., Defendants, Appellees.

No. 95-1465.

United States Court of Appeals First Circuit.

Heard Sept. 15, 1995.

Decided Jan. 18, 1996.

Wendy B. Golenbock, Wayland, MA, for appellant.

Stephen G. Dietrick, Deputy General Counsel, with whom Nancy Ankers White, Special Assistant Attorney General, and Herbert C. Hanson, Senior Litigation Attorney, Massachusetts Department of Correction, were on brief for appellees.

Before BOUDIN, ^* Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Plaintiff James Dominique, a sentenced inmate in the Massachusetts prison system, was returned to confinement after he had been allowed to participate in a work release program for almost four years. He appeals from the district court's refusal to order reinstatement of his work release status and its dismissal of his related claims, brought under 42 U.S.C. Sec. 1983, alleging violations of the Due Process Clause of the Fourteenth Amendment and the Ex Post Facto Clause. We affirm, albeit for different reasons in light of recent Supreme Court decisions.

I. Facts

Plaintiff was imprisoned in 1983 for multiple crimes including incest and is scheduled for release in June 2000. In August 1987, he was transferred to the minimum security Massachusetts Correctional Institution at Lancaster ("MCI-Lancaster"). In May 1988, the Superintendent of MCI-Lancaster permitted him to renew his driver's license in connection with work he was then doing on state vehicles. In August 1990, plaintiff was approved for the Community Work Release Program. He became a mechanic for R.M.J. Transportation, Inc., and the following year was permitted to open his own vehicle repair business.

Plaintiff remained in good standing in the work release program. However, in the summer of 1993, access to his license and the keys to his personal vehicle was revoked, causing him to lose his job at R.M.J. Transportation. In April of 1994, he was removed from the work release program. On May 5, 1994, because he was deemed a security risk, he was transferred from MCI-Lancaster to a medium security facility, MCI-Shirley. No hearing occurred before the latter transfer, but reclassification hearings were subsequently held on June 13 and September 23, 1994. Each time, a committee majority recommended plaintiff's transfer to a lower security facility. The Commissioner overruled these recommendations. Plaintiff remains at MCI-Shirley.

Defendants ¹ say that they revoked plaintiff's privileges because he remains in denial of his crime (in particular, the incest), and because he had too little accountability at his repair business. They justify taking away plaintiff's license because of revised DOC guidelines providing that only inmates within six months of an approved release date are eligible to use their licenses. They add that his crime makes him a risk to the public safety, and that, having been denied parole on three occasions, he is more likely to attempt to escape. Plaintiff responds that he has never violated any condition of the Community Release Agreement ("Agreement"). ² He claims that his removal resulted from media and public uproar following an incident--wholly unrelated to him--in which an MCI-Lancaster escapee shot a police officer. Plaintiff was never given a written statement of reasons for his removal. New regulations concerning the treatment of sex offenders make plaintiff presently ineligible for work release.

In his district court action, plaintiff alleged that these changes in his status violated the Due Process Clause of the Fourteenth Amendment and the Ex Post Facto Clause. He requested a preliminary injunction ordering that he be reinstated to the work release program. In dismissing the due process claim, the district court held that plaintiff had shown neither a constitutionally-derived nor a state-created liberty interest. This being so, the Fourteenth Amendment did not require the state to provide procedures prior to removing him from the program and returning him to prison. The district court also found no violation of the Ex Post Facto Clause, because the new regulations governing participation in work release were not punitive but rather related to the public safety. The court denied injunctive relief, as plaintiff had not shown a likelihood of success on the merits. ³

II. Standard of Review

The district court dismissed plaintiff's claims in response to defendants' motion in the alternative for dismissal under Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 56. The district court recited the standard governing 12(b)(6) motions to dismiss, but it relied in part on materials outside of the pleadings (including the Agreement and affidavits) to determine whether plaintiff enjoyed a protected liberty interest entitling him to procedural due process before removal from the work release program. We therefore treat the motion as one for summary judgment. See Smith v. Massachusetts Dep't of Correction, 936 F.2d 1390, 1394 (1st Cir.1991); Fed.R.Civ.P. 12(b)(6). We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmovant, plaintiff. Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995).

III. Due Process Clause of the Fourteenth Amendment

A. The District Court Decision

The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. The focal issue here is whether plaintiff was deprived of a protected liberty interest. Plaintiff has not asserted that he possessed a liberty interest created by the federal Constitution itself. ⁴ Rather, he has contended that Massachusetts state regulations and the Community Release Agreement established a state-created liberty interest which defendants could not take away without providing due process. The regulations and Agreement, he argued, cabined officials' discretion and led him legitimately to expect to remain in the work release program so long as he did not violate some express condition. Dominique relied on cases holding that a liberty interest may be created by "explicitly mandatory language" within state regulations. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983); see also Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983) ("particularized standards or criteria [to] guide the State's decisionmakers") (citation omitted). Dominique pointed to cases of this circuit holding that a signed agreement outlining criteria for participation in and removal from a prison release program may evidence a state-created liberty interest. Lanier v. Fair, 876 F.2d 243 (1st Cir.1989); Brennan v. Cunningham, 813 F.2d 1 (1st Cir.1987).

The district court analyzed the state regulations and Agreement under Thompson, Hewitt, Olim criteria. It concluded that the language relating to Dominique's interest in participating and remaining in the work release program was too provisional to create a constitutionally-protected liberty interest. Neither the regulations nor the Agreement required officials to grant work release status initially or indefinitely. Despite certain similarities between plaintiff's Agreement and agreements in Brennan and Lanier, the district court determined that, under our latest precedent, language of a more mandatory character was essential. ⁵

Plaintiff appealed. Within a week of filing his appellate brief, the Supreme Court issued its opinion in Sandin v. Conner, infra, modifying the standard for determining the existence of a state-created liberty interest.

B. Sandin v. Conner

In Sandin v. Conner, --- U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (5-4), the Court criticized its former precedent under which courts examined the language in state statutes and regulations to determine whether a liberty interest was created. This doctrine "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." Id. at ----, 115 S.Ct. at 2299. The Court expressed two policy concerns: its prior approach "creates disincentives for States to codify prison management procedures in the interest of uniform treatment." Id. The old approach also "has led to the involvement of federal courts in the day-to-day management of prisons," contrary to cases affording state officials appropriate deference and flexibility in prison management. Id.

The Court held that states may still create liberty interests that afford prisoners due process protections, but explained:

[T]hese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ..., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at ----, 115 S.Ct. at 2300 (internal citations omitted) (emphasis supplied). Applying this standard to the situation in Sandin, the Court concluded that disciplining a prisoner for thirty days in segregated confinement "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at ----, 115 S.Ct. at 2301.

C. Applying Sandin

Defendants argue that Sandin requires this court to affirm the district court's dismissal of plaintiff's due process claim. They agree with the lower court that the language of the regulations and Agreement was insufficient to create a liberty interest in any event, but argue that removal from work release and return to regular confinement did not meet Sandin 's new threshold criterion of an "atypical and...