Parenti v. Ponte, 83-1531

• Decision Date: 08 March 1984
• Docket Number: No. 83-1531,83-1531
• Citation: 727 F.2d 21
• Parties: Michael P. PARENTI, Plaintiff, Appellant, v. Joseph J. PONTE, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 21

727 F.2d 21

Michael P. PARENTI, Plaintiff, Appellant, v. Joseph J. PONTE, et al., Defendants, Appellees.

No. 83-1531.

United States Court of Appeals First Circuit.

Argued Dec. 5, 1983.

Decided Feb. 8, 1984.

As Amended on Denial of Rehearing March 8, 1984.

Thomas E. McDonald, Boston, Mass., with whom Samuel J. Armstrong, and Warner & Stackpole, Boston, Mass., were on brief, for plaintiff, appellant.

Martin E. Levin, Asst. Atty. Gen., Boston, Mass., Criminal Bureau, with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Asst. Atty. Gen., Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and MALETZ, ^* Senior Judge.

BOWNES, Circuit Judge.

Plaintiff Michael Parenti, an inmate at the Massachusetts Correctional Institution at Walpole, brought this action under 42 U.S.C. Sec. 1983 in the United States District Court for the District of Massachusetts. His complaint alleged that defendants, various officials and employees of the Department of Correction, had denied him due process by transferring him to the departmental segregation unit (DSU) without a fair hearing. The district court, 565 F.Supp. 987, found that the applicable state statute and regulations created no liberty interest protected by the due process clause of the fourteenth amendment, and dismissed the complaint for failure to state a claim.

The essential facts are not in dispute. On March 6, 1981, immediately following an incident at the prison, correction officer Tim Hall filed a disciplinary report charging Parenti with disruptive conduct. On April 29, 1981, a disciplinary hearing was held at which Hall, as the reporting officer, gave testimony against Parenti. The Disciplinary Board found that Parenti had committed a violation, and ordered sanctions of fifteen days in isolation and loss of forty-five days' good-time credit. The Board also recommended review by the Department Classification Board for transfer to the DSU.

On May 20, 1981, Parenti appeared before the Department Classification Board, which consisted of three members, including Hall; no objection was raised to Hall's participation at that time. The Board voted 3-0 to recommend Parenti's transfer to the DSU. On June 2, 1981, Parenti received written notification that the Commissioner of Corrections had authorized his transfer to the DSU. On August 27, 1981, Parenti reappeared before the Department Classification Board for a ninety-day review; again, the Board included Hall as a member. This time, Parenti objected to Hall's participation on the ground that he had testified during the previous Disciplinary Board hearing as a witness against him. The request that Hall be removed from the Department Classification Board proceedings was denied, and the Board voted to recommend that Parenti remain in the DSU for an additional sixty days. On September 10, 1981, Parenti received written notification that the Commissioner had approved the extension. After the next periodic review hearing on October 29, 1981, the Department Review Board recommended that Parenti be transferred back to the general population; this was approved by the Commissioner on November 6, 1981.

On appeal, Parenti does not challenge the procedure or the results of the disciplinary hearing, nor does he argue that the Commissioner lacked grounds for authorizing his transfer to the DSU. His sole contention is that he was denied an impartial hearing by Hall's presence on the Department Classification Board that recommended his transfer. We must, therefore, decide whether this contention gives rise to a due process violation claim.

The first question is whether Parenti had any liberty interest protected by the due process clause in remaining in the general prison population. It is clear that any liberty interest on Parenti's part must be grounded in state law, because the due process clause does not in and of itself guarantee any particular confinement status to a duly convicted prison inmate.

As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive.

Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); see also Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). In Meachum and Montanye, the Court held that transfers of inmates from one prison to another within a state did not implicate a liberty interest inherent in the due process clause. The Court rejected "the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause," because that "would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538.

Apart from the due process clause itself, the Court has also recognized a potential source of a protected liberty interest in state law. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court noted that "the State itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior," id. at 557, 94 S.Ct. at 2975, and proceeded to hold that the prisoners' interest in good time was a liberty interest protected by the due process clause. In both Meachum and Montanye, however, the applicable state law was held not to create a protected liberty interest because it did not limit the discretionary prison transfers to specific instances of misconduct or other events. Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539-40; Montanye, 427 U.S. at 243, 96 S.Ct. at 2547. More recently, the Court has noted that

a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show "that particularized standards or criteria guide the State's decisionmakers." ... If the decisionmaker is not "required to base its decisions on objective and defined criteria," but instead "can deny the requested relief for any constitutionally permissible reason or for no reason at all," ... the State has not created a constitutionally protected liberty interest.

Olim v. Wakinekona, --- U.S. ----, ----, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983) (citations omitted).

The Massachusetts statute governing DSU transfers provides:

At the request of the superintendent of any correctional institution of the commonwealth, the commissioner may authorize the transfer, for such period as he may determine, to a segregated unit within any correctional institution of the commonwealth, of any inmate whose continued retention in the general institution population is detrimental to the program of the institution.

Mass.Gen.Laws Ann. ch. 127, Sec. 39. We have held that the statute confers "broad statutory discretion" on the Commissioner, and thus does not in itself create a protected liberty interest. Four Certain Unnamed Inmates of Massachusetts Correctional Institution v. Hall, 550 F.2d 1291, 1292 (1st Cir.1977) (per curiam).

The regulations enacted under the statute require that the same procedures be followed when the Department Classification Board recommends a DSU transfer as when it recommends a transfer to another prison within the state. 103 C.M.R. Secs. 420.13(2) & 421.07(3). These procedures have remained essentially unchanged since they were implicitly held not to create a liberty interest by the Supreme Court in Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539. Although we have noted that "the Court's decision [in Meachum ] did not purport to be the last word on the state of Massachusetts law," Lombardo v. Meachum, 548 F.2d 13, 15 (1st Cir.1977), we have taken that decision as "commanding authority" for the proposition that Massachusetts law imposes no substantive standards on the Commissioner's discretion to transfer inmates. Four Certain Unnamed Inmates, 550 F.2d 1292, see also Daigle v. Hall, 564 F.2d 884, 885-86 (1st Cir.1977).

If the procedural requirements for Department Classification Board hearings were the only regulations governing DSU transfers, we would hold without hesitation that no protected liberty interest is implicated by such transfers. Procedural guidelines standing alone do not create a protected liberty interest. Hewitt v. Helms, --- U.S. ----, ---- - ----, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983); Olim, --- U.S. at ----, 103 S.Ct. at 1747. In Hewitt, however, the Court found that the state had "gone beyond simple procedural guidelines" to require that "certain procedures 'shall,' 'will,' or 'must' be employed" in "language of an unmistakably mandatory character," in conjunction with "specified substantive predicates--viz., 'the need for control,' or 'the threat of a serious disturbance.' " Hewitt, --- U.S. at ----, 103 S.Ct. at 871. The Court stated that "the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest." Id.

In light of Hewitt, we must reexamine the Massachusetts prison regulations relating to DSU transfers. They are as follows:

(1) A resident may be transferred to a departmental segregation unit after a finding by the commissioner that the record of the resident or other reliable information indicates that:

(a) The resident poses a substantial threat to the safety of others; or

(b) The...