Paoli v. Lally

• Decision Date: 09 March 1987
• Docket Number: No. 86-7188,86-7188
• Citation: 812 F.2d 1489
• Parties: Lawrence PAOLI, Jr., Plaintiff-Appellant, v. Robert LALLY, Secretary, Department of Public Safety and Correctional Services; Robert McColley, Acting Commissioner; McLindsey Hawkins, Acting Warden, Maryland Penitentiary; Sigmond L. Fine, Assistant Warden of Treatment, Maryland Penitentiary; Lloyd B. Calkins, Chief Psychologist, Maryland Penitentiary; Arnold J. Hopkins, Commissioner, Division of Correction; Edwin R. Goodlander, individually; William J. Kunkel, Chairman, Maryland Parole Commission; James Mills, Major, Acting Assistant Warden of Custody-Maryland Penitentiary, Defendant-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1489

812 F.2d 1489

Lawrence PAOLI, Jr., Plaintiff-Appellant, v. Robert LALLY, Secretary, Department of Public Safety and Correctional Services; Robert McColley, Acting

Commissioner; McLindsey Hawkins, Acting Warden, Maryland

Penitentiary; Sigmond L. Fine, Assistant Warden of

Treatment, Maryland Penitentiary; Lloyd B. Calkins, Chief

Psychologist, Maryland Penitentiary; Arnold J. Hopkins,

Commissioner, Division of Correction; Edwin R. Goodlander,

individually; William J. Kunkel, Chairman, Maryland Parole

Commission; James Mills, Major, Acting Assistant Warden of

Custody-Maryland Penitentiary, Defendant-Appellees.

No. 86-7188.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 12, 1986.

Decided March 9, 1987.

John Henry West, III (Pamela J. White, Baltimore, Md., on brief), for plaintiff-appellant.

Stephanie Lane-Weber, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen. of Md.; Deborah Koss Chasanow, Baltimore, Md., on brief), for defendants-appellees.

Before SPROUSE, CHAPMAN and WILKINS, Circuit Judges.

SPROUSE, Circuit Judge:

Lawrence Paoli, Jr., a Maryland inmate, appeals from the district court's grant of summary judgment against him and in favor of Edwin Goodlander, William Kunkel, Robert Lally, and Arnold J. Hopkins. ¹ Paoli brought a Sec. 1983 action, 42 U.S.C. Sec. 1983, alleging his due process, equal protection, and eighth amendment rights were violated when Commissioner Goodlander summarily reversed his transfer from medium to minimum security facilities and again disapproved his transfer a year later. Paoli sought compensatory and punitive damages, declaratory relief, and an injunction requiring his placement in a minimum security facility. The suit has continued against former Commissioner Goodlander in his individual capacity and his successors in their official capacities. In a separate Sec. 1983 action against Chairman Kunkel of the Maryland Parole Commission, Paoli alleged his due process, equal protection, and eighth amendment rights were violated when the Commission allegedly failed to schedule an appropriate parole rehearing. In that action, Paoli asked for compensatory damages, declaratory relief, and an injunction requiring a parole hearing. The two actions were consolidated in 1984 ² and upon motion the district court granted summary judgments to all of the defendants, 636 F.Supp. 1252 (1986). We affirm.

In April 1966 Paoli was sentenced in the Criminal Court for Baltimore City, Maryland, to eighteen concurrent life sentences for ten counts of rape and eight counts of assault with intent to rape. Since then, he has been incarcerated within the Maryland prison system. In 1974 Paoli filed a lawsuit to obtain experimental drug treatment and since 1975 Paoli has received medical treatment in the form of psychotherapy and weekly injections of Depo-Provera, a drug that lowers testosterone levels and thereby decreases sexual urges. The treatment apparently has had a beneficial effect on Paoli; it is conceded that his appearance and behavior have improved dramatically.

Paoli was incarcerated in a maximum security facility when he began treatment, but was transferred to a medium security facility in 1978. Since that time his prison file has contained a "flag" indicating that the Commissioner is to be notified before Paoli is transferred to a facility categorized as less than medium security. On August 22, 1979, Paoli was transferred to a minimum security facility following the recommendation of a classification team and the concurrence of the warden of the facility where he was then incarcerated. Commissioner Goodlander, learning of the transfer the next day, ordered Paoli returned immediately to the medium security facility. Paoli received no prior notice of this action, nor was a statement of reasons provided or a hearing held. Commissioner Goodlander indicated that Paoli's transfer was disapproved pending a final review of the classification recommendation. In July 1980 Commissioner Goodlander issued his "final decision" that Paoli could not be transferred to a minimum security facility. That same month, another classification team recommended that Paoli be transferred to a minimum security facility, but Commissioner Goodlander again disapproved the transfer. Paoli then filed his Sec. 1983 action against Goodlander on November 7, 1980.

At a parole hearing that same month, November 1980, the Parole Commission noted that Paoli had not been moved to minimum security, denied him parole, and did not set a date for his next parole hearing. In January 1983, the Parole Commission again refused to set a date for a parole hearing. Paoli filed his Sec. 1983 suit against Chairman Kunkel on September 20, 1983. After the suit was filed, however, the Parole Commission held a hearing (in February 1984), denied parole, and set a date of 1992 for the next parole hearing.

The principal issue on appeal is whether summary judgment was properly granted to all the defendants in Paoli's action, which alleges violation of his due process, equal protection, and eighth amendment rights. Paoli contends these rights were implicated and violated by his removal from minimum security facilities without notice, a hearing, or a statement of reasons; by the later denial of his transfer to a minimum security facility; and by the Parole Commission's refusal in November 1980 to schedule a rehearing. ³ Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(c). Paoli contends genuine issues of material fact exist over the effect of his physical transfer to a minimum security facility and Commissioner Goodlander's reasons for disapproving his transfer. The parties have entered into substantial stipulations of material facts, however, including that Paoli was transferred to a minimum security facility as recommended by a classification team, then returned to medium security the next day pending a final review by the Commissioner. The parties also stipulated that Goodlander ultimately disapproved Paoli's transfer primarily because of the risk posed to society--the effects of Depo-Provera are temporary and there is no guarantee that Paoli would continue with the treatment if he were to escape or be released. The effect of these and other stipulations is to eliminate any "genuine issue as to any material fact," id., and to leave only the issue of whether the facts amount to violations of constitutional rights. The district court, therefore, properly determined that the only issues presented in this case are legal and not factual.

A transfer of a prisoner from one institution to another, of course, does not implicate a liberty interest in the absence of a state statute or regulation that creates such an interest. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court, in finding that a liberty interest existed in obtaining a favorable parole determination, emphasized the mandatory language of the state statute requiring that eligible prisoners be released on parole unless one of several listed factors was found to exist. It also emphasized that whether a "state statute provides a protectible entitlement must be decided on a case-by-case basis." Id. at 12, 99 S.Ct. at 2106. Following Greenholtz, most lower courts have relied on the mandatory or discretionary nature of statutory language in determining whether it creates a liberty interest. See, e.g., Baumann v. Arizona Department of Corrections, 754 F.2d 841, 843-44 (9th Cir.1985); Pugliese v. Nelson, 617 F.2d 916, 922-25 (2d Cir.1980); Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir.1979); Boothe v. Hammock, 605 F.2d 661, 663-65 (2d Cir.1979); Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir.1979); see also Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). But cf. Winsett v. McGinnes, 617 F.2d 996 (3d Cir.1980), cert. denied, 449 U.S. 1093, 101 S.Ct. 891, 66 L.Ed.2d 822 (1981) (Delaware work release program created liberty interest because of specific criteria listed despite lack of mandatory language in statutes and regulations). The initial question, therefore, is whether the relevant Maryland statutes and regulations in effect at the time of the alleged violations create a protectable liberty interest.

Section 674 of Article 27 of the Maryland Code provides: "The Commissioner is in sole and active charge of the Division of Correction and of its several institutions and agencies, subject only to his responsibility to the Secretary of Public Safety and Correctional Services and to the Governor." Md.Ann.Code art. 27, Sec. 674. Under section 676, "[t]he Commissioner may adopt and promulgate reasonable rules and regulations," which "may...