Garcia v. De Batista, 80-1205

• Decision Date: 26 February 1981
• Docket Number: No. 80-1205,80-1205
• Citation: 642 F.2d 11
• Parties: Adrian Lopez GARCIA, Plaintiff, Appellant, v. Irba Cruz DE BATISTA et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 11

642 F.2d 11

Adrian Lopez GARCIA, Plaintiff, Appellant, v. Irba Cruz DE BATISTA et al., Defendants, Appellees.

No. 80-1205.

United States Court of Appeals,

First Circuit.

Argued Sept. 9, 1980.

Decided Feb. 26, 1981.

Carlos V. Garcia Gutierrez, Santurce, P. R., for appellant.

Lorraine Riefkohl de Lopez, Asst. Sol. Gen., Dept. of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge and WYZANSKI, Senior District Judge. ^*

COFFIN, Chief Judge.

The plaintiff, Adrian Lopez Garcia, appeals from the dismissal of this action brought under 42 U.S.C. § 1983 against several employees and officials of the Corrections Administration of the Commonwealth of Puerto Rico. He claims that his recommitment to prison from a "halfway house" without notice or a prior hearing failed to comport with the requirements of procedural due process. Plaintiff's prayer for injunctive relief became moot when he was released on parole. On the surviving damages claim, the district court granted summary judgment in favor of all defendants and dismissed the complaint, holding that plaintiff had no constitutionally protectible liberty interest in remaining in the halfway house program.

The parties have stipulated to the chronology of events and the basic facts. On July 26, 1977, after several years of confinement in Puerto Rico's prisons, plaintiff was transferred to the Halfway House at Arecibo, operated by the Corrections Administration of the Commonwealth of Puerto Rico. To qualify for the program, he had to meet certain criteria established by regulation, including a "minimum custody" classification, a favorable psychological evaluation and a substantial completion of his minimum sentence. While at the halfway house plaintiff held a job and enjoyed privileges unavailable to him in prison. On December 5, 1977 he was recommitted without prior notice or a hearing to the District Jail of Arecibo, a closed penal institution, upon the recommendation of the "Treatment Board" of the halfway house. The transfer was approved the next day by the Classification, Diagnosis and Treatment Center, a body within the Corrections Administration. The Center also decided not to recommend plaintiff for parole. Plaintiff maintains that he was given no reason for these decisions.

Prior Proceedings

We first consider plaintiff's objection to the procedure followed by the district court. The case originally was referred to a United States magistrate to take evidence on plaintiff's request for a preliminary injunction. The magistrate conducted a hearing and several months later, on May 18, 1978, issued "Findings of Fact and Conclusions of Law." He recommended that defendants' motion to dismiss, filed the day of the hearing, be granted on the ground that plaintiff had failed to allege a protectible liberty interest. Plaintiff objected to the recommendation and the district court referred the case back to the magistrate with directions to consider the objections. After reconsidering his initial report, the magistrate reached the opposite conclusion. On September 15, 1978 he issued a "Report and Recommendation" recommending that the defendants' motion to dismiss be denied and that the parties be allowed to conduct discovery. The second recommendation went unopposed and was approved by Chief Judge Toledo.

On the eve of trial, another judge of the district court entered an opinion and order granting judgment in favor of the defendants and dismissing the complaint on the basis of the magistrate's initial "Findings of Fact and Conclusions of Law." ¹ We can see no explanation for the court's reliance on the magistrate's initial report. The "Findings of Fact and Conclusions of Law" alluded to by the court were not adopted by Chief Judge Toledo but were referred back to the magistrate for reconsideration. The magistrate's second report, which Chief Judge Toledo did adopt, recommended that the motion be denied, thereby nullifying the initial recommendation. Under these circumstances it was improper for the district court to reach back and breathe new life into the magistrate's defunct first report. ²

We cannot agree with defendants' fallback argument that despite this procedural irregularity, the record clearly establishes their right to summary judgment on the liberty interest issue. The record support for the decision below is sparse indeed. Defendants failed to submit a single affidavit or other sworn testimony in support of their several motions for summary judgment, even after plaintiff had objected to an earlier motion on that ground. The unsworn letters attached to defendants' motions plainly do not qualify as affidavits under Rule 56(e). Ramsay v. Cooper, 553 F.2d 237, 240 (1st Cir. 1977). The only matter properly before the district court, then, other than the pleadings, was the stipulated facts. These the court was bound to presume true as uncontroverted allegations of the complaint. In this posture, defendants can succeed in upholding the judgment in their favor only if the complaint fails to state a valid claim for relief. We therefore turn to an evaluation of the allegations of the complaint.

Liberty Interest

The single issue presented in this appeal is whether plaintiff has adequately alleged a claim that by virtue of his recommitment to prison, he was deprived of a constitutionally cognizable interest in liberty. ³ Our due process analysis begins with narrowing the focus of inquiry by reason of the fact that plaintiff was at all relevant times an inmate under sentence of imprisonment. Plaintiff has not challenged the validity of his conviction here, nor has he contended that incarceration at the jail to which he was returned was beyond the scope of his original sentence. As a result of his unquestioned conviction and sentence, we must assume that plaintiff had been legitimately deprived of his liberty to the extent that his recommitment did not infringe any liberty interest substantively guaranteed by the due process clause itself. Lacking a constitutional source for his claimed liberty interest, plaintiff must look to state law. The question, therefore, is whether the Commonwealth can be said to have created a protectible liberty interest by allowing plaintiff to participate in the halfway house program.

The Supreme Court has held in several prison transfer cases that in order to establish a state-created liberty interest against transfer, an inmate must be able to demonstrate some "right or justifiable expectation" rooted in state law that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 226-227, 96 S.Ct. 2532, 2539-2540, 49 L.Ed.2d 451 (1976). The surest source of a state-created liberty interest is an explicit grant of right in positive law not to be treated adversely absent certain conditions. Such a right may be created by statute or by prison rules and regulations. Wright v. Enomoto, 462 F.Supp. 397, 402 (N.D.Cal.1976), aff'd mem., 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978). Alternatively, when the discretion of prison officials is limited but not wholly confined by statute or regulation, the Court has found a "justifiable expectation" or "implicit promise" of conditional liberty when, in practice, prison officials exercise their discretion only within the legally prescribed guidelines. Vitek v. Jones, 445 U.S. at 489, 100 S.Ct. at 1261; Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972).

Plaintiff relies principally on Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which extended due process protection to parole and probation. The gist of the claim is that the halfway house program, like parole and probation, is a form of conditional liberty that gives rise to a "justifiable expectation" of continued liberty absent misbehavior. The allegations of the amended complaint are that the halfway house program provides its participants with a broad range of opportunities in employment and education not available to prison inmates and maintains a liberal leave policy. Plaintiff alleges that during his four months in the program he was employed first as a car washer and then as a car salesman and that these jobs permitted him to resume providing for his family. He also alleges that as a halfway house resident he was able to gain admission with a substantial scholarship to attend a "recognized institution of higher education". The leave system at the halfway house is alleged to have been much more extensive than that at closed institutions, both in the frequency of leaves and the purposes for which leaves were granted.

The amended complaint further alleges that measures such as recommitment from the halfway house to prison "are (not) to be taken absent acts or omissions by an inmate." In support of this assertion, the complaint refers to prison disciplinary regulations promulgated by the Commonwealth Secretary of Justice as well as a permanent injunction entered in Cruz Hiraldo v. DeJesus Schuck, No. 74-448 (D.P.R., filed July 8, 1974), which enjoined prison authorities from violating those regulations. The 1975 version of the "Rules and Regulations for Disciplinary Procedure in Penal Institutions" (disciplinary regulations), in effect when plaintiff was returned to prison, ⁴ applied to inmates at "any institution" under the jurisdiction of the Corrections Administration. The halfway houses are under the statutory jurisdiction of the Corrections Administration. P.R.Laws Ann. tit. 4, § 1201. ⁵ Indeed, it appears that these regulations fulfill the Corrections Administrator's statutory duty to...