Jackson v. Fair

• Citation: 846 F.2d 811
• Decision Date: 02 November 1987
• Docket Number: No. 87-1589,87-1589
• Parties: Anthony JACKSON, Plaintiff, Appellant, v. Michael FAIR, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 811

846 F.2d 811

Anthony JACKSON, Plaintiff, Appellant, v. Michael FAIR, et al., Defendants, Appellees.

No. 87-1589.

United States Court of Appeals, First Circuit.

Heard Nov. 2, 1987.

Decided May 16, 1988.

Thomas M. Hefferon with whom Henry C. Dinger and Goodwin, Procter & Hoar, Boston, Mass., were on brief for plaintiff, appellant.

William D. Saltzman, Counsel, Dept. of Correction, with whom Freda K. Fishman, Associate Gen. Counsel, Dept. of Correction, and Nancy Ankers White, Sp. Asst. Atty. Gen., Boston, Mass., were on brief for defendants, appellees.

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

LEVIN H. CAMPBELL, Chief Judge.

In this prisoner's 42 U.S.C. Sec. 1983 action, plaintiff-appellant Anthony Jackson asked the district court to preliminarily order Massachusetts officials to rescind their transfer of Jackson from a psychiatric hospital to a correctional institution. The district court denied the request, and Jackson appeals.

I.

Appellant Anthony Jackson is serving several sentences, including three consecutive life sentences for first degree murder, in the custody of the Massachusetts Department of Correction. He has been in continual custody of state or county officials since December 1972 and in state custody since June 1976. In July 1981 he was committed to Bridgewater State Hospital ("Bridgewater")--a high-security psychiatric hospital administered by the Massachusetts Department of Correction. He was returned to a state penal institution briefly in January 1985 and recommitted to Bridgewater just nine days later. His most recent commitment ended on February 23, 1987, when he was moved from Bridgewater to MCI-Norfolk, a medium-security penal institution.

This appeal concerns Jackson's violent dissatisfaction with his February 1987 transfer. The transfer had its origins in July 1986 when Dr. Wesley Profit, who served as the Forensic Director of Bridgewater and had known Jackson for five years, determined that Jackson no longer needed to remain in Bridgewater. To effect Jackson's return to the general prison population, Dr. Profit decided not to petition for Jackson's recommitment to Bridgewater. Under Massachusetts law, orders of commitment are valid for a maximum of one year, and patients are then automatically returned to whence they came--prisoners return to penal institutions, and non-prisoners return to society. See Mass.Gen.Laws ch. 123, Secs. 8, 18 (1987). Jackson's commitment order was due to expire in early October 1986.

On September 19, 1986, Dr. Profit informed Jackson that Jackson would not be recommitted to Bridgewater. Jackson responded in a letter to the Bridgewater staff threatening suicide if he were transferred to a penal environment. Dr. Profit was not surprised by this response--he felt it fit with Jackson's history of manipulative behavior. However, when the letter was received, Dr. Profit was out of town. In Dr. Profit's absence, the Bridgewater staff adopted a cautious course of action, and petitioned for recommitment. On his return, Dr. Profit continued with his plans to return Jackson to the general penal population. On February 6, 1987, a classification board convened to decide the level of security Jackson would require upon his return to prison. The board reclassified Jackson from "maximum security" to "medium security," making him eligible for placement at MCI-Norfolk. On February 18, staff members of Bridgewater and MCI-Norfolk met to discuss Jackson's medical needs, and how to cope with his suicidal threats. On February 21, Dr. Profit received a comprehensive medical report from a Dr. Kobrin, who concluded that there was no reason why Jackson could not be returned to a prison setting. Finally, on February 23, 1987, Jackson was discharged from Bridgewater and transferred to MCI-Norfolk.

Jackson received no prior notice of his transfer. On the morning of February 23, 1987, he was told to report to the Property Room at Bridgewater. When he arrived, several guards were waiting for him. Jackson was then taken to MCI-Norfolk.

Upon arrival at MCI-Norfolk, Jackson at first exhibited suicidal behavior: he went on a hunger strike, he injured himself by attempting to swallow a bed spring, and he refused medication. Jackson explained that he would only begin eating if he were returned to Bridgewater. By June 9, however, an MCI-Norfolk official observed that Jackson was "calm and rational" for the past several weeks, and that Jackson was pursuing his litigation activities.

On March 23, 1987, one month after his transfer, Jackson asked the United States District Court for the District of Massachusetts to enter a preliminary injunction requiring defendants to return him to Bridgewater. ¹ The motion claimed five federal grounds for relief: 1) Jackson's transfer from Bridgewater to Norfolk violated Fourteenth Amendment procedural due process because he was denied a state-created right without a hearing; 2) Jackson was denied certain procedures available to non-prisoners in violation of the equal protection clause; 3) the transfer violated Jackson's "fundamental right to liberty"; 4) the transfer resulted in cruel and unusual punishment in violation of the Eighth Amendment; and 5) the transfer was imposed in retaliation for a suit brought by Jackson against Bridgewater officials, and thus violated Jackson's right of access to the courts. Jackson also requested an evidentiary hearing.

On June 12, 1987, the district court denied the motion for a preliminary injunction, explaining that Jackson had not established a likelihood of success on the merits. It held that Jackson had no state-based rights to remain at Bridgewater, and that based on the record before it, the medical treatment available at Norfolk did not violate the constitutional minimum. The court made no express reference to Jackson's retaliation claim, and did not hold the evidentiary hearing which Jackson had requested.

On appeal, Jackson challenges the substantive findings of the district court. In addition, Jackson claims that the court below committed two procedural errors; it denied the motion for preliminary injunction without holding the requested evidentiary hearing, and it did not address several of Jackson's claimed grounds for relief.

We uphold the district court's substantive rulings, and we find that the district court did not abuse its discretion by declining to hold an evidentiary hearing. The district court erred in failing to address Jackson's claim of retaliation, but the error was harmless because of Jackson's failure to establish any likelihood of success. We therefore affirm the order of the district court denying Jackson's request for a preliminary injunction.

II.

To be entitled to a preliminary injunction, a plaintiff must show the following four conditions:

(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981) (citation omitted). The district court based its denial of the injunction on Jackson's failure to establish a likelihood of success on the merits, and we limit our consideration to this one factor. Our standard of review, generally, is whether the district court abused its discretion in denying the injunction. Id.

A. Procedural Due Process

Jackson claims that state officials deprived him of a liberty interest without due process of law. His claimed "liberty interest" is a state-created right to reside at Bridgewater rather than at Norfolk, and the procedure which he seeks is a pre-transfer hearing.

To analyze this claim, we briefly review the law as it has developed concerning Fourteenth Amendment liberty interests. Some liberty interests, such as that not to be imprisoned, are inherent in the federal constitutional law. In addition to federally defined liberty interests, certain state activities can give rise to a state-created liberty interest. An example of this type of liberty interest is a parolee's interest in not having his parole revoked. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court held that once a state decides to grant parole, it has created a liberty interest in the parolee's continued freedom. Accordingly, the state may not revoke parole without appropriate procedural protections. See also Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (holding that public education may not be deprived without due process). A third type of liberty interest is a state-provided benefit that, standing alone, does not create a liberty interest, but that in combination with certain state-provided procedural safeguards, creates an "expectancy" that is entitled to constitutional protection. An example is the liberty interest in the granting of parole (as contrasted with the continuation of parole in Morrissey ). See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In Greenholtz, the Court noted that parole was not a "constitutional or inherent right," id. at 7, 99 S.Ct. at 2104, and that unlike the continuation of parole in Morrissey, a mere state-created possibility of parole is not a liberty interest. Parole, therefore, did not fit in either of the first two categories of liberty interests. However, the Court then found that the language of the Nebraska parole statute created a "protectable expectation of parole." Id. at 11, 99 S.Ct. at 2106. The Nebraska statute stated that officials "shall" grant parole unless one of several conditions were shown. The Court stressed that it was not deciding that all state parole laws...