Raso v. Moran

• Decision Date: 08 November 1982
• Docket Number: Civ. A. No. 80-0431.
• Citation: 551 F. Supp. 294
• Parties: Edward A. RASO v. John J. MORAN.
• Court: U.S. District Court — District of Rhode Island

551 F. Supp. 294

Edward A. RASO v. John J. MORAN.

Civ. A. No. 80-0431.

United States District Court, D. Rhode Island.

November 8, 1982.

Mark Mandell, and Martin W. Aisenberg, Providence, R.I., for plaintiff.

Stephen Robinson, Asst. Counsel, R.I. Dept. of Corrections, Cranston, R.I., for defendant.

OPINION

PETTINE, Senior District Judge.

This action which was brought pursuant to 42 U.S.C. § 1983, involves Plaintiff Raso's rights under R.I.G.L. § 42-56-25 (1971). That statute sets out certain conditions under which a prisoner incarcerated at the Adult Correctional Institutions can donate blood in exchange for having time deducted from his sentence. The plaintiff contends that the defendant's failure to provide him with the opportunity to participate in the Rhode Island blood donation program as a result of his transfer to an out-of-state federal prison violated his rights under the Due Process Clause of the Fourteenth Amendment. He seeks to enjoin the defendant from denying him the right to donate blood, regardless of where he is incarcerated, without a hearing to determine his eligibility. He also seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201 (1982), that the deprivation of his statutory right to give blood under R.I.G.L. § 42-56-25 without a hearing violates his Fourteenth Amendment due process rights.

This Court has already denied the defendant's motion to dismiss for failure to state a claim upon which relief can be granted. Raso v. Moran, No. 80-0431, slip op. (D.R.I. February 4, 1981). In that opinion, the Court observed that the plaintiff's claim presents two questions. First, do Rhode Island prisoners have a right or justifiable expectation rooted in State law that they will be able to give blood in exchange for having time deducted from their sentence? Second, may a state prisoner be denied the opportunity to donate blood because he has been transferred to federal custody to serve his state sentence? Id. at 1.

Subsequent to the denial of the defendant's motion to dismiss, the parties stipulated that they would both move for summary judgment on the issue of whether R.I.G.L. § 42-56-25 or the policy and practices of the Department of Corrections create a constitutionally protected right for an inmate incarcerated pursuant to Rhode Island law to donate blood and thereby reduce his sentence.¹ In accordance with this stipulation, both parties have moved for partial summary judgment on the basis of the stipulated facts. This opinion addresses these crossmotions.

Facts

The facts in this case are undisputed and may be simply stated. Plaintiff Raso was incarcerated in the Adult Correctional Institutions (ACI) until his involuntary transfer on September 20, 1978 to a federal prison in Illinois. Prior to his transfer he had been permitted to donate blood and in return have time deducted from his sentence. Afterwards, however, Raso requested and was denied the right to participate in the blood donation program. Inmates remaining at the ACI, on the other hand, continued to be able to donate blood and reduce their sentences. Since filing his complaint, Raso has been returned to the ACI and is, presumably, again being permitted to participate in the blood donation program.

Discussion

A. Mootness

As an initial matter, the Court must determine whether this case presents a live case or controversy in light of Raso's return to the ACI. Although neither party has raised the issue of mootness, the Court is obligated to consider this question on its own initiative because "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). Since in this case the plaintiff is no longer suffering the harm that led to his complaint, consideration of mootness is unavoidable.

The general rule that governs mootness determinations is well established; a case becomes moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). Here, there is no live controversy because Raso is not presently being denied the opportunity to give blood. Upon being sent back to the ACI, he assumed the same rights as other inmates to participate in the blood donation program. Nor is Raso currently being denied a legally cognizable interest. He has not sought damages against the State or credit for the blood time denied him as a result of his transfer.²

Even though a case does not present a "live" controversy, it can still be heard if it is "capable of repetition, yet evading review". See e.g., Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). In the absence of a class action, a case is considered capable of repetition, yet evading review where two elements combine: (1) the challenged action is in its duration too short to be fully litigated prior to its expiration and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. Id.; Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). Not every action of short duration is reviewable. Rather, "there must be a `reasonable expectation' or a `demonstrated probability' that the same controversy will recur involving the same complaining party." Murphy v. Hunt, 102 S.Ct. at 183.

The present case falls within the capable of repetition, yet evading review doctrine.³ Raso has been transferred to out-of-state prisons twice within the last four years. He resided in an out-of-state prison from December 2, 1979 to April 24, 1980 and from August 8, 1980 to August 27, 1981. Although he filed the affidavit giving rise to this case soon after his second transfer, his claim still has not been resolved. There is thus reason to believe that the periods in which Raso resided in out-of-state prisons were too short to litigate his complaint. Moreover, in light of the frequency with which Raso has been transferred from the ACI, there is a demonstrated probability that he will be transferred again. The capable of repetition, yet evading review test is therefore satisfied. This Court need not wait until Raso is deprived of the rights to which he claims he is entitled for a third time, before deciding if indeed he possesses those rights.

B. The Merits

I

The threshold issue that this Court must consider is whether R.I.G.L. § 42-56-25 creates a liberty interest which is protected by the Due Process Clause of the Fourteenth Amendment. The plaintiff claims that he is entitled to certain procedural protections to insure that a state-created right is not arbitrarily abrogated. The plaintiff does not, and indeed could not, contend that he maintains a liberty interest in giving blood that is based on the Constitution itself. See Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532, 2538-2539, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).

Whether a state statute creates a protectible liberty interest must be decided on a case-by-case basis. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979). In making this determination, the Court must consider the language and structure of the statute at issue. Id. If it is found that Rhode Island has created a right to blood-time which can only be denied a prisoner under limited, specifically acknowledged circumstances, then the prisoner's interest has real substance and is sufficiently embraced within the "liberty" protected by the Fourteenth Amendment to entitle him to the minimum level of due process protection appropriate under the circumstances. Cf. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (due process protected inmates from the arbitrary loss of the statutory right to good time credits).

The critical issue that must be addressed in deciding whether a state statute creates a protectible liberty interest is the extent to which state officials can exercise discretion in administering that statute. See Meachum v. Fano, 427 U.S. at 228, 96 S.Ct. at 2540; Garcia v. De Batista, 642 F.2d 11, 14 (1st Cir.1981); Lombardo v. Meachum, 548 F.2d 13, 14-15 (1st Cir.1977); 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). As the First Circuit said in Garcia: "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." 642 F.2d at 14. Thus, in Meachum the Supreme Court held that a Massachusetts transfer statute did not entitle state prisoners to due process protection because the transfers were "not conditioned upon the occurrence of specific events", 427 U.S. at 226-27, 96 S.Ct. at 2539-40, and because "prison officials had discretion to transfer prisoners for any number of reasons." Id. at 228, 96 S.Ct. at 2540. See also Lombardo v. Meachum, 548 F.2d at 14.

In the present case, the plaintiff contends that he has a protected liberty interest in making blood donations based on R.I.G.L. § 42-56-25, which provides, in relevant part, that:

Any prisoner sentenced to imprisonment for thirty (30) days or more in the adult correctional institutions ... shall be entitled to have deducted from the term or terms of sentence of such prisoner ten (10) days for each pint of his or her blood donated by him or her to any veterans' organization, civil defense unit, hospital, the armed forces of the United States, or the Red Cross or any fraternal or religious organizations or for the purposes of scientific research. Each prisoner shall be limited to four (4) donations each year. Any reduction of

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